The Disability Discrimination Act (DDA) definition of “disability” includes conditions which, although the sufferer is not currently affected by them, are “likely to recur”. In this case, the Court of Appeal considered what factors an employer should take into account in deciding whether or not an employee is suffering from a recurring condition, and so protected under the DDA.

The college withdrew its offer of a job to Ms McDougall, when it received evidence in a medical report of a psychiatric condition which had affected her in the past. The last “episode” that she had suffered had taken place more than three years previously, and the college also had a letter from her doctor stating that she was fit to work. After the college had withdrawn the offer, McDougall suffered a relapse. She claimed disability discrimination.

Cover not retrospective

In the EAT, it was held that events taking place after the alleged discriminatory act could be taken into account. The Court of Appeal overturned this: only information available to the employer when deciding whether or not to take the action should be considered. McDougall’s subsequent relapse did not mean that she was covered by the DDA when the college withdrew its offer of employment to her. Therefore she was not protected by the DDA and could not claim unlawful discrimination.

The court observed that employers need to know whether or not their actions could lead to a claim before deciding which course of action to take, and so they must be able to ascertain at that time whether or not an employee is protected by the DDA.

Key points

The employer was only expected to consider medical evidence available to it at the time it made its decision to withdraw an offer of employment to a potentially disabled applicant.

Where medical evidence indicates that a previous medical condition is not likely to recur, the fact that it does recur will not operate retrospectively to protect an employee or potential employee under the DDA.

What you should do

When considering decisions in respect of employees or potential employees with a history of a medical condition which, if present, might classify them as disabled for the purposes of the DDA, always seek medical advice as to whether the condition is likely to recur.